Defences to Defamation
Introduction

s22 of Defamation Act
Roles of judicial officers and juries in defamation proceedings: 
1) This section applies to defamation proceedings that are tried by jury.
2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.

•    Up until January 2006, the issue as to whether the defendant has a defence was a question for the judge/judicial officer. With the recent legislation, this is now the decision of the jury under s22(2).

There are three types of Defence in Defamation:

1)    Truth: Most applicable defence in circumstances where there are statements of fact.
2)    Comment: Provides defence where comment has been made, based on proper material for comment.
3)    Privilege: Where you can not satisfy a court that statement is true, this is the best defence to use.

At common law, truth or justification, is a complete defence.

(i)    JUSTIFICATION

1. Truth at common law and the defence of justification:
Section 25 of Defamation Act
Defence of Justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

Under the relevant section of NSW legislation, s 25, from 1 Jan 2006, the defence of justification requires proof of substantial truth alone. Previously, the element of public interest was also required.

Truth at Common Law:

•    Truth is a complete defence. If a defendant succeeds on a defence of truth they do not have to pay damages. It serves to recognize the goal of defamation. That is you are entitled to the reputation you have but not the reputation you do not: Rofe v Smith

•    Truth requires the truth of the imputation not the truth of the actual words.

•    The level of truth that is to be justified is the sting of the imputation. For example in Potts v Moran a sweeping generalization was made that most of the people in the town of Murray Bridge have had a stomach full of the plaintiffs activity. The defendant proved that 400 of the 7000 people agreed but the court did not deem this sufficient to qualify as most people.

•    Each imputation is justified separately. Thus in some cases a defendant may be capable of justifying a primary meaning but not an innuendo. Different evidence may thus be pleaded for each: Hepburn

•    Where the imputations are loose ambiguous or defamatory in more than one way the plaintiff may be ordered to clarify by way of particulars of false innuendo. This prevents trial by ambush because it is very difficult in these circumstances for a defendant to know how it should plead justification. For example in Singleton v French the question of defamatory meaning was left to the jury when there was an unclear imputation. A
retrial was ordered because such a matter is for the judge and furthermore a defendant cannot properly meet imputation when they are vague.

What must be proved?

Potts v Moran (1976) SC of South Australia
FACTS: Defendant had published a newsletter stating that most of the people of Murray Ridge had ‘had a stomachful’ of the plaintiff’s activities. Defendant called 400 people who had had a ‘stomachful’. Not enough because 7000 people in Murray Ridge.
HELD: Bray CJ “If those minded to make defamatory statements of another use language of such sweeping generality that it is impossible to substantiate it according to its terms and are mulcted in damages accordingly, it seems to me that they have only themselves to blame.”
But the statement of ‘most’ was not a mere inaccuracy of detail or a rhetorical flourish. Thus the defence of justification was not made out.

Marsden v Amalgamated Television Services [2001]
FACTS: The background to the case was that, on the strength of a statutory declaration by Colin Fisk (later retracted), a member of the NSW State Parliament, Ms Deidre Grusovin, made allegations under absolute privilege in Parliament. These included that Mr Marsden had had sex with underage boys. John Marsden was the President of the Council for Civil Liberties, a former head of the NSW Law Society, former member of the NSW Police Board, and a high profile figure with political clout and connections. After these allegations were made, Mr Marsden held a press conference at Parliament House, presenting the retracting statutory declaration of Mr Fisk, and denying the allegations.
On 13 March 1995, Today Tonight reported on these allegations. It also contained an interview with two men who were later witnesses in the trial. The next day Mr Marsden began defamation proceedings.
IMPUTATIONS: From the “Today Tonight” program:
1. The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18.
2. The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff.

Channel 7 followed up on 7 May 1996 with a segment of its Witness program called “The Dark Side”. Mr Marsden tried unsuccessfully to obtain an injunction preventing the broadcast of this segment. Three males were interviewed and identified as having had sex with Mr Marsden when they were 14 or 15. Within a week of broadcast, Mr Marsden commenced proceedings in respect of this program as well.
IMPUTATIONS: From the “Witness” Program:
1. The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were.
2. The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were.
HELD: Jury found these imputations to be defamatory. D relied on two substantive defences of justification and qualified privilege. The burden of justification fell on the defendant, on the balance of probabilities, taking into account the imputations.
The D set out to prove the truth of the imputations (that the jury had found to arise) in 4 ways:
▪ Evidence of the complainants/witnesses
▪ By attacking the plaintiff’s credit in order to render him a witness unworthy of belief
▪ Admissions by conduct (I.e. to show that the plaintiff attempted to suborn a witness – something consistent with consciousness of guilt);
▪ Finally, the permeating concept of a modus operandi of the plaintiff to tip the probabilities in favour of the defendant.
▪ Note: Proof of the substantial truth of an imputation requires proof that the main charge, or gist, of the libel is true. Inaccuracy in the proof of the detail, including peripheral detail, of an imputation will not prevent the defendant from succeeding in a defence of justification provided that the main charge or gist of the libel is established.
▪ In this case, the defence of truth failed.

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